Is Triple Talaq Bill really about Gender Justice?

    Lok Sabha has cleared the Muslim Women (Protection of rights on marriage) bill 2017, which criminalizes instant divorce. Despite opposition to the bill from many quarters, govt. has projected the bill as legal tool for empowerment of the women of Muslim community. The hurry with which it has pushed the law in the lower house and the accompanying politicization reflects otherwise.

    Firstly, the bill is full of many incongruities and lacks cohesiveness. To criminalize an act of civil nature is classic case of legislative overreach. If the govt. was so serious about the rights of community there was no need to wait for SC verdict on the issue. The fact that SC has already declared talaq-e-biddat null and void, it becomes the law of land under Article 141 of the constitution. What it means is that any person pronouncing instant divorce to his wife will not count as legal divorce. Hence, what is the need to criminalize when the crime in itself is not recognized/committed?

    Secondly, the bill provides 3 year of jail term and provision for subsistence allowance for the wife. Who will provide the allowance if husband goes to jail? What if the wife just wants to be reunited with her husband without sending him to jail? At best, the bill needs redrafting to remove these discrepancies.

    Thirdly, its the question whether triple talaq the only injustice faced by Muslim women. Several groups of Muslim women have asked for an all inclusive law which makes illegal other practices like polygamy & halala. Just shooting the gun over Supreme Court's shoulder by singling out instant divorce and calling it a decisive step is laughable.

    Hence, what is needed is to include all other practices which are discriminatory to the women of Muslim community & make them a civil rather than a criminal offense.

    The bill raises other pertinent question about the approach of government towards individual rights. Do the current dispensation really has the courage of conviction to abrogate laws that abridge individual rights? Lets look at the stand of govt. on other issues of individual right which do not involve only the Muslim community.

     It has defended marital rape by arguing that criminalizing it may weaken the institution of marriage. Do the women who are victim of marital rape do not need empowerment? It is puzzling that the govt. which is repealing the antiquated laws has not moved its foot on laws like Section 498 of IPC that deals with adultery. Others like transgender rights, sedition laws etc. can be added to the list. Most of all, the govt. argued and fought against the right to privacy in the SC calling it an elitist concern not protected under Section III of the constitution.

    Moreover, the govt. has ridiculed the argument of orthodox member of the community that talaq-e-biddat should stay as it is the tradition of community protected under Article 25. While it was right in doing so, the govt. itself takes the refuge of same argument while justifying cow protection or its stand on Ram Janmabhoomi conflict. It has always favored the community traditions over individual rights when it comes to Hindu community.

    So, based on the stand it has taken on the spectrum of issues, the current bill is everything but a step towards gender justice & women empowerment. It is basically the manifestation of the "love jihad" ideology which criminalizes Muslim men as a enemy of Hindu Rashtra. Full points on opportunism.

Transgender Person (Protection of Rights) Bill

    In its landmark judgement in 2014 (NALSA vs Union of India) Hon'ble SC declared transgenders as the third gender and affirmed that fundamental rights granted under the constitution will be equally applicable to the community. Also, it asked the government to make adequate provisions for the empowerment of the community. As a follow up govt. tabled Transgender Person (Protection of Rights) bill in the parliament in 2016 which was subsequently sent to a parliamentary panel for further improvements. The govt. has reintroduced the bill again in the parliament without any modifications. Due to various provisions of the bill, it has attracted criticism from the community stakeholders on various grounds. Lets us try to analyze what the bill provides and where its found lacking which has led to this criticism.

    Transgenders have been one of the most marginalized community since the ancient time as their sense of gender identity did not conform to the prevalent social norm. They are forced to live in separate settlements, deemed fit only for certain professions and castigated by the state & society for no fault of their own. Archaic provisions like section 377 of the IPC restrict their control over their own body and are detrimental to the right to life and dignity provided by Article 21 of the Indian constitution. In this light SC's decision was welcomed & seen as opening up the path to freedom for the community from the shackles of history. However, 2 years after the judgement little difference has been made on the ground.

    The bill introduced by the govt. provides a definition of transgender person as one who are neither wholly male or female, or a combination of both female and male. The activists have criticized this definitions as it defines transgenders based on the traditional heterosexual gender norms. Moreover it falls short of providing affirmative support to transgenders in arenas like education & employment. The bill just states that the state will make sure that they will not feel any discrimination due to their gender. It provides for punitive action against those who subject transgender to any kind of violence but does not include public servants under its ambit. Considering that the transgenders have to face maximum exploitation at the hands of police officials via torture in custody, sexual violence and criminalisation by perennial threat of section 377, the bill does little to help to allay this fear.

    The bill also falls short of granting civil rights to transgenders like right to marriage, adopt children etc and they will continue to face legal action against section 377 of IPC. The SC judgement was historic in the sense that it provided the right of self determination to the transgenders to define their identity in the way they deem fit. The bill reiterates the self determination in principle but at the same time provides a state level screening committee to grant transgender person a certificate of identity. How the self identification and certification will work parallely is unclear.

    It is difficult to comprehend a society where a human being is deemed unfit for certain basic civil rights due to his gender.  The union govt. had an opportunity to nudge society to a progressive attitude towards gender identity by building on the SC judgement through a strong legislation. By rejecting all the recommendations of parliamentary committee, the bill will fail its purpose to be a tool of empowerment for the transgender community.

Post Script: SC upheld the validity of Section 377 in 2013 Koushal judgement. By declaring right to privacy as a fundamental right under Article 21 in 2017, SC has paved way for quashing Section 377 as it can be interpreted as violation of privacy of transgender community.